Courting trouble

The WA Senate election gets murkier still, with the two winners originally declared on the basis of a 14-vote difference junked in favour of two other winners declared on the basis of a 12-vote difference. With over 1000 votes known to be missing, it's likely to be a case of see you in court, and then back on the hustings.

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Update (Saturday 11pm)

Two number-crunchers out in web-land have made the effort to identify which votes have gone missing by comparing booth results from the first and second counts, and they have reached the same conclusion: but for the missing votes, the result at the decisive point in the count would have been very close to a tie. One is Ben Raue at the Tally Room, while the other is an anonymous commenter on a pseudonymous blog  that of Truth Seeker, whose statistical work on the Senate count process has won great acclaim. Despite the obscurity of the latter source, he or she is clearly well on top of the situation.

It is clear that what has gone missing is bundles of votes for particular parties, the numbers of which can be determined with considerable precision despite the minor adjustments to the vote totals which legitimately resulted from the recount process. I will now deal with the four booths in turn, using the numbers determined by Anonymous. Keep in mind that the only votes with the capacity to change the result are those cast for Shooters & Fishers, Australian Christians or the smaller micro-parties which fed them preferences: Australian Independents and the Fishing & Lifestyle Party in the former case, No Carbon Tax Climate Sceptics in the latter.

Mount Helena: This booth produced the most important discrepancy with the disappearance of its complement of above-the-line votes for Shooters & Fishers, of which there were 14. Also gone are the Liberals’ tally of 370 above-the-line votes, together with nine for Animal Justice.

Wundowie: Together with its 29 informal votes, the above-the-line votes of nine different parties have disappeared from this booth. Those relevant to the result are three votes for Australian Christians and one each for No Carbon Tax and Australian Independents. Also gone: 166 Liberal, 164 Labor, eight Smokers Rights, seven Help End Marijuana Prohibition, five Wikileaks, and one Katter’s Australian Party.

Bunbury East: The 152 votes missing from this booth appear to be the above-the-line votes for nine parties, the only ones relevant to the result being three for Australian Independents and one for No Carbon Tax Climate Sceptics. The others were 112 votes for the Greens, 12 for Animal Justice, 11 for Family First, six for Wikileaks, three for Stop the Greens, two for Katter’s Australian Party and one for the Secular Party, together with 77 of the 81 informal votes cast at the booth.

Henley Brook: This one was straightforward and, ultimately, not important: 349 Liberal above-the-line votes are missing, leaving 286 still in the count.

Tallying that up suggests Shooters & Fishers have lost 18 votes and Australian Christians five. Ben Raue’s calculation is very slightly different at nineteen and four, as he counts a missing Australian Fishing & Lifestyle Party vote and has one less vote missing for Australian Christians, which Anonymous thinks likely to have been genuine recount corrections. Either way, the numbers suggest that reverting to the first-count results for these booths, as I have been advocating, would cause the result to flip back to Louise Pratt and Dio Wang based on the smallest margins imaginable  one vote by Anonymous’s reckoning, and three by Ben Raue’s.

Original post

For the vast civilian majority in Western Australia that would sooner not have to vote again, today’s conclusion of the Senate election recount has delivered the worst possible outcome, with the original result overturned by an excruciatingly narrow margin. On the basis of the unquestionably flawed and incomplete recount, Greens Senator Scott Ludlam and Australian Sports Party candidate Wayne Dropulich will be declared the winners in place of Labor Senator Louise Pratt and Palmer United Party candidate Dio Wang.

The key to the result remains the point at which the lead candidates of either Shooters & Fishers or the Australian Christians are excluded. If it’s the former, Shooters & Fishers preferences sustain Dropulich at a point in the count where he would otherwise be excluded, ultimately allowing him to finish ahead of Wang off the base of a tiny primary vote after harvesting preferences left, right and centre. Wang’s preferences then flow to Ludlam, giving him victory ahead of Pratt. But if Shooters & Fishers stay in the count, Dropulich is unable to overtake them, a point arrives where he is excluded, and Shooters & Fishers themselves are ultimately unable to get ahead of Wang, who wins a seat when the various micro-party preferences are distributed. With Wang’s votes used to get himself elected, his exclusion does not provide Ludlam with the mass transfer of preferences he needs, causing him to be left holding the bag with Pratt’s election to the final seat.

In the original count, Count 139 famously delivered a 14-vote victory to the Shooters & Fishers candidate with the following numbers:

But of course, the latter result excludes the famous 1255 missing above-the-line votes, which were cast at the Bunbury East, Mount Helena, Henley Brook and Wundowie booths.

If I had anything to do with the matter, I’d be very determined to craft an outcome that didn’t require a fresh election, which will have a disastrous impact on the public’s confidence in the system. The best chance of avoiding that would have been for the recount to have reaffirmed the original result, which might have given the High Court the confidence to determine that the recount should stand, warts and all. However, that’s gone out the door now that counts have produced different results with respect to not one but two seats.

The other chance of an out involved the requirement that a discrepancy be big enough to be decisive before it can be used as a basis for overturning a result. Under happier circumstances, the availability of first count results from the four affected booths might have served as evidence that this wasn’t so. While 1255 votes sounds like a lot in the context of the margins under discussion, it must be kept in mind that the only votes which actually have the potential to affect the result are those cast either for Shooters & Fishers, Australian Christians or other micro-parties which fed them preferences (remembering we’re only dealing with predictable above-the-line votes here  below-the-line votes were not included in the recount process, presumably on the basis that they were thoroughly scrutineered during the data entry process). Those parties are the Australian Fishing & Lifestyle Party and Australian Voice in the case of Shooters & Fishers, and the Rise Up Australia Party in the case of Australian Christians. Based on the published results for the first count, the four polling booths at issue delivered 61 votes to the Shooters & Fishers and 60 votes to Australian Christians (UPDATE: The previous two sentences are not quite right  see the update at the top of the post for a more accurate account). However, it’s not enough simply to add those votes to the existing totals and achieve a hypothetical result, as not all of the votes from the four affected polling booths went missing. In short, the situation appears far too unclear to say that the missing votes could not have affected the result, given the narrowness of the margin involved.

My own preferred solution, which I advocated in an article for Crikey yesterday, was for the High Court to direct the Australian Electoral Commission to use the first count results from the four affected polling booths and the recount results from everywhere else. I wouldn’t presume to say that there are no legal difficulties involved in this, but it would appear to me to pass the common sense test. Given that the number of missing votes on which the result might hinge is around 120, and the likelihood that these particular votes were counted more-or-less correctly the first time around, it could have been hoped that the margin at the key point in the recount would have been big enough to allow such a result to proceed with an adequate level of confidence. But with just 12 votes in it, that becomes a lot harder to do.

It’s certainly possible the answer to that question is no, OC. The court is empowered to:

– Declare that any person who was returned as elected was not duly elected;
– Declare any candidate duly elected who was not returned as elected;
– Declare any election absolutely void.

That might make it sound like it doesn’t have the power to issue directives about the way the count should be determined. However, they appeared to do exactly that when Fran Bailey’s win in McEwen was challenged in 2007, in which they made specific determinations on the validity of hundreds of contested ballots.

Posters on the Truth Seeker blog have been looking at exactly which votes appear to be missing (based on booth totals) and on that basis believe that the addition of the missing votes would shift the margin in favour of S+F by approximately … 13 votes. If they’re right then the margin should be one vote to ALP/PUP barring any further errors or any overrulings of given votes by CDR. However based on McEwen it could well be the court would shift that margin by a small number of votes one way or the other, as a result of rulings on votes disputed in the recount by scrutineers.

I take it the law does not allow the High Court to void the Senate result in only the electorates where the votes have gone missing. It would be a lot cheaper and less disruptive but controversial and slightly unfair to the rest of WA. It would have to be done with the rolls from 7/9/2013, so that nobody who moved from an electorate not revoting to an electorate revotes got to vote twice.

There have to be enough errors with the count to get a single vote margin thrown out. The missing votes alone would give enough chance of a miscount and/or formality error to get a single vote margin thrown out. WA needs to go back to the polls.

I take it the law does not allow the High Court to void the Senate result in only the electorates where the votes have gone missing.

Certainly not one of the listed powers of the Court in cases like this. They have the powers to declare someone elected who wasn’t, to declare someone unelected who was, or to declare the whole election void. If they do the latter it’s a fresh campaign, fresh nominations, different parties, new preference deals and so on.

There have to be enough errors with the count to get a single vote margin thrown out.

There are probably enough arguable BTL data entries alone to argue that such a margin wouldn’t stand with confidence anyway. But if the court is that concerned about the margin, the first thing to do is to make rulings on the actual disputed votes and see if it changes. On the other hand if they are going to declare it void even if the margin excluding the missing votes is, say, 20, they may as well save resources and not bother.

I do not know (Not that I am a lawyer). The more important (highly related) question is is there party funding for both elections? I would think not but there should be because 2 elections cost 2 elections worth of money.

When Jackie Kelly was petitioned the Court declared her not elected AND the election void. (Overkill – but the voiding of the poll I guess staunched any suggestion the AEC conduct a recount with her excluded). My memory is public funding stood for both the general and re- elections.

Sadly a re-election is just going to be a referendum on carbon pricing. Sandgropers of course are progressively inclined on this issue.

The Sports Party, I fearlessly predict, will have the shortest lived parliamentary lifespan in history.

Deposits for candidates over 4% would be repaid long before any court ruling (ditto for public funding). I suppose a ‘void’ ruling might inspire some micro parties to ask for their first deposits back, on a literally reading of ‘absolutely void’; and a sheepish AEC might oblige.

But in substance it’s not the same as a failure of an election through a candidate dying. ‘Void’ notoriously has shades of meaning. Not necessarily ‘void from the beginning’.

William should petition the Court and raise his ingenious suggestion. The Court has appeared to consider that it has power to order a ‘special count’. See Free v Kelly (2), where Labor wanted a special count with Kelly excluded. The Court rejected it not because it was beyond power but because it was dodgy/undemocratic in the circumstances. (Labor would have had a leakage of Lib preferences and stolen the seat).

“If I had anything to do with the matter, I’d be very determined to craft an outcome that didn’t require a fresh election, which will have a disastrous impact on the public’s confidence in the system.”

I don’t see any reason for this. There shouldn’t be any confidence in the system, if there was any doubt of that before the election there certainly isn’t now. If jerry rigging a result based on guesswork and probabilities improves confidence in the system, that would be a bad thing and a (further) damnation of the intellect of the average Australian.

I agree with your solution William but can the High Court do that after the AEC has made a declaration pf the result?

I would have thought that given the CoDR has the explicit power to award the outcome to any candidate that they see fit using whatever logic they like, that they can therefore use whatever evidence they like to reach the conclusion as to which candidates should be successful.

ie if the CoDR thinks it reasonable to patch up the recount with the original count in the booths effected by the lost ballot issue, and doing so produces a particular list of 6 senators, the CoDR can say “yup, job done, those are the elected senators, everyone can go home now”.

The CoDR could also consult a ouija board and pick the Senators that way if they thought that was fair.

I think it depends on how the CoDR views an election, or a Senate election in particular. They may decide that near enough is good enough, the Senate being what it is and the Senate voting system being what it is, and that they can pick either of the two neck-and-neck outcomes and it won’t be a massive injustice either way. Flipping a coin and awarding it as heads=Pratt and Wang, tails=Ludlam and Dropulich.

Whatever decision they make is final so it’s not like there are going to be endless legal battles if they do this, although they may worry that an arbitrary decision will undermine the integrity of the election process (more than it already has been undermined that is).

Karl, while I can’t argue with “jerry-rigged”, I don’t agree that the tallies I am proposing be used for the four missing booths amount to “guesswork and probabilities”. Ninety-nine times out of a hundred they would have been used in the final result, without anyone thinking to complain.

But you are still relying on probability to say that enough of them wouldn’t have changed in the recount to change the result. The situation is bad enough before any voting anomalies come into it, if we can’t even have a clean recount then it should be voided.

My dream would be this ultimately leads to the whole system being replaced for something slightly less insane.

Morning all. What a terrible outcome! Human error or note, the missing votes do cast real doubt on the result. I would like to see Scott Ludlam remain in the Senate, and not another PUP, but to me this result has no credibility. But both sides have legitimate arguments, so I do not see any alternative to another vote.

I know you should not believe conspiracy theories but, at best, someone in Pearce has failed badly, and should lose their job. The integrity of the result has been damaged.

The “missing” votes in Indi were later found to be a clerical error (although many people are still talking about “found on a shelf”). So they may simply have been wrongly labelled. However, we can rely on Mick Keelty’s expertise to suss it out 😉

* It seems highly suspicious that bundles of votes have simultaneously gone missing at four different booths in the one state during the recount of a closely contested Senate election.
* This suggests to me that the bundles have been deliberately misplaced (ie, stolen) by someone. That someone would have to be an AEC employee, since no-one else has access to the ballot papers.
* Since it has happened in four different places, it is unlikely that the theft was done on impulse – it suggests a plan co-ordinated by someone, which could only have had the objective of influencing the outcome of the recount. And as we see that objective has been achieved, at least temporarily.
* So if we apply the test of cui bono, we must conclude that the instigator of this plan was someone who wanted Ludlam or Dropulich to win.
* Since I doubt Dropulich’s party has the capacity to do such a thing, that points the finger at the Greens.
* I don’t suggest that Ludlam or the Greens state leadership are responsible. But it’s quite possible that some local zealot who had gained employment as a temporary AEC worker for the election count decided that such an action was justified by the greater good of getting Ludlam re-elected, and that he or she then texted three mates in other booths (or wherever the recount took place) to do the same thing.
* I realise the hole in this theory is that the thieves would have had to know precisely which bundles of votes to steal, but it wouldn’t have been impossible to figure that out. Anyone have a better theory?

I was of the understanding that all the recounting occurred in a centralised location. It makes more sense that they went missing during transportation or at the count centre. But that is purely guesswork.

I think it is quite possible that local zealots would attempt this
You may remember that in the 1995 NSW State election the result came down to a very close fight in Badgery’s Creek (might have been called Minchinbury at the time). There was an attempt to fire bomb the divisional office as the count was drawing to a close. No arrests were made.

Psephos, the ballot papers did not go missing from different places. They were all counted in polling places on the night. They were then transferred to the office of the relevant Divisional Returning Office. They were counted in the office, the below the line votes forwarded to the data entry centre and the above the line votes counted and batched. All ATL ballots from each Divisional Office were then transferred to a storage centre in Perth where they were to be stored for six years in line with past court judgements.

The ballot papers disappeared at a time and place somewhere between the RO’s office and their retrieval from the storage centre for the re-count. When and where they disappeared between these two points is now the subject of inquiry.

Some comments on the WA election matter from Antony Green. The remarks don’t fit at all neatly with the hypothesis that someone stole bundles of votes merely to engineer the success of an unsuccessful WA Senate candidate:

The results were so close that it would have been impossible within that time to identify which bundles to misappropriate. The thief/tamperer would have had to model the 500 votes hitherto deemed informal that were subsquently deemed formal. On schedule feasibility grounds alone, this seems unlikely.

[I don’t suggest that Ludlam or the Greens state leadership are responsible. But it’s quite possible that some local zealot who had gained employment as a temporary AEC worker for the election count decided that such an action was justified by the greater good of getting Ludlam re-elected, and that he or she then texted three mates in other booths (or wherever the recount took place) to do the same thing.]

I find this utterly improbable. We don’t work that way and if someone suggested such a thing, there would be shock and outrage if the Greens I know here are any guide. We’re nothing if not sticklers for good process.

Self-evidently, if someone(s) did manage to carry off such a disreputable thing, they ought to be held accountable and if one was in some way associated with us, then I’d be for keeping them out of and away from our party forever more.

That all noted, it’s hard to imagine that anyone who knew which piles of votes to hide wouldn’t have also known that the most likely result in practice would be a new election for the WA senate which might well reproduce the same result. Palmer would be able to concentrate his considerable resources on just that campaign and with enough grandstanding, he might well improve his vote share.

If we are speculating, the most appealing theory (after stuff-up) is someone wanting to bring the AEC or the process into disrepute, and if one asks cui bono there, the circle points more directly at Palmer than anyone else.

The Informal Party is concerned that someone has tampered with the informal vote in Western Australia. The Party notes with satisfaction that it has demonstrated beyond doubt that it is in the interests of the major parties to present candidates for prime minister who are fit to be prime minister.

I take Antony’s point that the recount was not done in different localities so that part of my theory isn’t valid. I also accept that it would have been very hard for a potential malefactor to know which bundles of votes to steal in order to achieve a desired outcome.

I don’t accept Fran’s assertion that Greens are too pure at heart to do such a thing. There are individuals in all parties who would do it if they thought they could get away with it.

I guess we will have to wait and see what other possible explanations emerge.

I agree that if there is a revote in WA, Palmer will be the main beneficiary.

I think that while the CDR might be able to cobble together a best-estimate outcome based on the counted votes from the original count and the recount, it’s going to be so ridiculously close that it’s likely routine irregularities (double voting, errors in admission decisions for absents etc) will blow it over.